[Congressional Record Volume 167, Number 162 (Monday, September 20, 2021)]
[Senate]
[Pages S6539-S6541]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Madam President, I return to the Senate floor to 
again discuss the scheme to capture our Supreme Court; in this case, it 
will be through the lens of how recent Justices got on the Court. And I 
will choose Brett Kavanaugh.

[[Page S6540]]

  I think we all remember the famous list--the Federalist Society 
list--that Donald Trump promised to follow in Supreme Court 
appointments. The first interesting thing about Brett Kavanaugh is that 
he was not on the list of candidates that Donald Trump had offered up--
this list that bought peace between house of Trump and house of Koch. 
Trump had promised he would appoint off that scheme-approved Federalist 
Society list. He didn't, and yet no one complained. That is a telltale 
right there.
  There was no complaining because Brett Kavanaugh knew this terrain. 
He knew the central operative at the heart of this scheme, Leonard Leo. 
He had worked on judicial nominations in the Bush White House with 
Leonard Leo, who coordinated big donors' support for judicial nominees.
  I have described before a judge who bemoaned to me what he called his 
colleagues auditioning--auditioning for higher office, auditioning for 
the Supreme Court. ``Auditioning'' was a telltale word that stuck with 
me. You don't audition without someone to audition to. Well, Kavanaugh 
knew the guy at the center of the scheme, and he knew that the donor 
turnstile to the Supreme Court was run out of the Federalist Society.
  So Kavanaugh not only auditioned with Leo; he auditioned at the 
Federalist Society. And no one auditioned harder than Brett Kavanaugh. 
As a circuit judge, he campaigned through 27 Federalist Society events. 
I think he set the record for auditioning at Federalist Society events. 
He knew who, and he knew where. And he also knew what the big donors 
wanted. So he made sure his circuit-court opinions signaled his chops.
  On abortion, Garza v. Hargan, OK to force a teenager to wait 
indefinitely for an abortion as the clock ran; check.
  On guns, Heller v. District of Columbia, a dissent in the follow-up 
case to the Supreme Court Heller decision--in his case, one even more 
extreme than Scalia; check.
  For polluters, PHH v. CFPB, waving the Federalist Society's unitary 
executive banner, even saying that regulatory agencies are a 
significant threat--I am quoting him here, regulatory agencies, the 
things that protect us from pollution and cheaters, are a ``significant 
threat to individual liberty,'' if you are a polluter; check.
  And most important to this dark money scheme, EMILY's List v. FEC, 
where he said the front groups ``are constitutionally entitled to raise 
and spend unlimited money in support of candidates for elected office'' 
because it is ``implausible that contributions to independent 
expenditure political committees are corrupting.'' Yeah, how could that 
possibly be corrupting? Check.
  So this is behavior. In nature, when you see behavior, you can draw 
conclusions. When you see, for instance, a vulture wheeling, you can 
expect something dead below. It is not always true; the vulture may 
just be wheeling in an updraft eddy. But when you get a number of 
vultures wheeling, it is pretty reliable that there is something dead 
below. And when so many judges start auditioning for advancement that 
their behavior acquires a name from other judges, you can be pretty 
sure there is an audience for their auditioning.
  And Kavanaugh knew that audience. His relationship with Leonard Leo, 
his hustling of Federalist Society events, his insider knowledge of the 
Republican selection process and the big donors, and his ardent display 
of his wares in all the ways big donors would want, was a winning 
combination.
  So Leonard Leo hand-walked him around the Trump Federalist Society 
list and straight to the top of the judicial selection pile, and no one 
with a hand in the Trump-Koch deal that spawned the Federalist Society 
list voiced an objection.
  Kavanaugh had auditioned his way around the list, and the scheme 
could not have been happier with the outcome. All of that behavior is 
telling. There is a scheme, and Kavanaugh knew how to play it.
  Now that the scheme had its man, they would fight for him. They did 
not know how hard the fight would be, until Dr. Christine Blasey Ford 
came forward with a tale of youthful sexual assault by Kavanaugh and a 
drunken buddy.
  But even before that, there were telltales of the pressure to get 
Kavanaugh onto the Court. Thousands of pages of records from his White 
House days were withheld; blank pages stamped ``Constitutional 
Privilege'' were presented to us on the committee. They couldn't even 
bring themselves to call it ``executive privilege,'' the claim was so 
far-fetched. ``Constitutional Privilege'' was an invented phrase, but 
they knew no Republican would object.
  The pressure was on. The play had been signaled. The money behind the 
scheme was the money behind the Republican Party, so Democrats could 
complain, but the Republican wall would hold. All our objections and 
requests would be overruled.
  Another example of signaling from nature, you can tell a lot about 
the wind by looking at the water, as sailors know. You don't have to 
feel it; you can understand the wind by looking at the water. Little 
wavelets show where gusts of wind can be found on a still day. The 
water darkens where there are stronger puffs on windy days. As the wind 
grows, the waves grow bigger, and then whitecaps form. And as the wind 
strengthens more, wind lines appear--Langmuir circulation, the 
scientists call it--aligned with the wind's direction. And in a full 
gale, spindrift, foam from the tops of the waves--spindrift blows off 
the wave tops.
  In the same way that you can tell a lot about the pressure of the 
wind by looking at the behavior of the water, you can tell a lot about 
the pressure of the scheme by looking at the behavior of the 
Republicans--particularly in the gale-force controversy over Dr. Blasey 
Ford's testimony. By all rights, in any normal world, Kavanaugh would 
have been withdrawn. The fact that he wasn't is a telling signal of 
pressures afoot.
  Allegations of sexual violence motivate domestic violence and victims 
groups, groups which Senators do not ordinarily choose to cross.
  Is one judge worth that? Why not just pick another?
  Yet they went forward--another telling signal of the pressure.
  Senators usually prize their chance to question Supreme Court 
nominees, yet Republicans gave that up to a female prosecutor sent to 
disarm Dr. Blasey Ford's testimony--yet another signal.
  Of course that didn't work. The witness's testimony was clear and 
credible. The female prosecutor was sent packing. Republican Senators 
were left in the touchy position of having to disbelieve Dr. Blasey 
Ford without any basis for disbelieving her.
  Yet only one Republican Senator buckled--another signal. Senator 
Flake demanded some investigation, and here, the gale force pressure 
kicked in. This could not go on. Kavanaugh was too great a prize. The 
FBI was pressured to do a fake investigation. That is a fire alarm of a 
signal.
  We saw many signs of things awry. For a while, early on, the FBI 
became impervious to information. To put it mildly, that is not the 
FBI's customary disposition. An FBI that suddenly becomes impervious to 
information is quite a signal. The FBI was told which few witnesses 
could be interviewed. The interviews were cursory and terse.
  Other witnesses who came forward were ignored or turned away. Even 
when Dr. Blasey Ford and other witnesses were trolled by the ``flying 
monkeys'' of the far right so venomously that Dr. Blasey Ford had to 
stop teaching, had to leave her home, had to hide herself under the 
protection of a security detail, witnesses still tried to come forward. 
So ultimately, under pressure, the FBI announced a tip line for 
witnesses to contact, but the tip line was a fake.
  The FBI has procedures for things, and it has tip line procedures. 
The FBI did not follow its tip line procedures. It appears the FBI did 
not follow up on any of the tips that came in on the Kavanaugh tip 
line. Instead, the FBI routed the Kavanaugh-related tips to the White 
House Counsel's Office for a decent burial.
  We on the committee were ultimately allowed, in a classified 
setting--classified setting--2 hours of what you could call speed 
dating with documents to look through pile after pile of documents--no 
notes allowed, no photos allowed, no copies allowed. One of those 
piles, though, was tip line results, so we know that tips came in.

[[Page S6541]]

The FBI admits thousands of tips came in. None were followed up.
  FBI statements at the time said they were following standard 
procedure. What they meant by that, which they later admitted, is that 
in background investigations, they are agents of the White House and 
under White House political direction, so their regular procedures did 
not apply. The standard procedure they said they were following was the 
procedure of not following the standard procedures, if you can get 
around that verbal somersault.
  What the FBI did not say is that, aside from standard investigative 
procedures they did not follow, there are also standard FBI procedures 
for background investigations. The FBI is a procedure-bound 
institution. We are still digging and we are going to keep digging, but 
it looks like they didn't follow those background investigation 
procedures either.
  For apparently the first and only time in a background investigation, 
I believe an FBI ``investigation'' was put under the operational 
control of the White House so that the White House could craft, with 
the FBI, the appearance of an FBI investigation without any real 
investigating. The kind of pressure it takes to do that is intense. 
That is gale force. That is the spindrift flying. It takes a gale of 
pressure to have the FBI violate so many of its own procedures, to 
meekly go along with the White House's abuse of the FBI's longstanding 
reputation for thoroughness and integrity. That is the kind of gale-
force pressure the scheme can mount. The scheme had to have its prize.
  Republicans even turned their guns on polite, honorable, bipartisan 
Dianne Feinstein. She was accused of a corrupt plot to sandbag 
Kavanaugh. Senator Feinstein is not capable of such a thing, and 
everyone knows it, so this attack on her was yet another signal.
  There was a new narrative to impose. Kavanaugh becomes the victim, 
wicked Democrats become the wrongdoers, Dr. Blasey Ford and her 
testimony get swept aside, and, in a well-whipped stampede of partisan 
tribal anger and grievance, Kavanaugh sweeps onto the Court.
  Another signal that I am still seeing now is the effort of rightwing 
media to cover this all up. After Senator Coons and I pressed the FBI 
on this bogus investigation, the National Review and other rightwing 
outlets immediately published articles to tidy things up. Their main 
source seems to be a former Republican Judiciary staffer who tweeted 
and then deleted ``Unfazed and determined. We will confirm Judge 
Kavanaugh'' just a few days after the Blasey Ford investigation came to 
light, before this so-called investigation was concluded.
  The coverup article suggests three things: First, hey, we had a 
chance to read all of the over 4,500 tips the FBI received; second, 
there was a 400- or a 600---it varies depending on the article--page 
FBI report assessing the tips and exonerating Kavanaugh that was 
circulated to all Senators, and all we had to do was read it; and 
third, that had there been anything wrongful or incriminating or 
derogatory that was found, it could have been referred for further 
investigation.
  Let's look at those three claims.
  First, this ``open access'' to those documents was the 2-hour window 
I was talking about where we could go in and speed-date with raw FBI 
documents in piles and interview reports--again, no notes, no copies, 
no pictures; just piles of documents in a room we had to walk through 
and clear out of--and if we wanted, we could return to review the 
documents when votes on cloture and confirmation were ongoing. I am not 
making that up.
  The supposed report, this 400- or 600- or whatever page report, is 
actually a 28-page document compiled by Republican Senate Judiciary 
Committee staff, not the FBI, with hundreds of pages of attachments to 
thicken it up. Those 28 pages are pure political whitewash that cast 
aside the credible claims offered to the FBI for further investigation 
but altogether ignored. Saying that this Republican committee report--
so-called--was available to Senate Democrats is like saying we should 
have turned on FOX News for the lowdown on these tips--not actually.

  As to the idea that we could have referred anything suspicious for 
further examination, I really don't know what these rightwing outlets 
are talking about. If they meant the FBI, that is not true. The FBI and 
the White House had agreed that the investigation was over as far as 
they were concerned. If they mean the Senate Judiciary Committee, that 
is as laughable as the 28-page whitewash.
  One last signal here. The FBI continues to dodge questions about this 
investigation. It was over 2 years ago that Senator Coons and I asked 
simple, direct questions about the tip line. Only this summer did we 
receive the first smidgeon of a response. The response deflected us to 
an MOU between the White House and the FBI, which, when we dug around 
and found it, which we had to do ourselves, proved not to substantiate 
what we were being told. So we repeated our questions and repeated our 
questions, and last week, Director Wray appeared in Senate Judiciary 
and promised answers in 2 weeks. We will see.
  As a prosecutor, I know those cases where you can't go forward, for a 
victim, with charges. There could be innumerable reasons, but sometimes 
you just can't. In those unfortunate cases, it can matter a great deal 
to the victim that she at least got an honest and thorough 
investigation of her claim. Dr. Blasey Ford was denied even that. The 
FBI sacrificed her to the gale-force political pressure applied by the 
scheme to get this well-auditioned nominee into place.
  And let's get real. You don't apply gale-force political pressure for 
judges who are just going to call balls and strikes. Four hundred 
million dollars--$400 million--has been spent in dark money on this 
Court-capture scheme. For $400 million, you don't want balls and 
strikes. You want judges who will throw the game for you. You want what 
you paid for--a captured Court. And if you look at its track record, 
that is this Court. It is the Court that dark money built, and it is 
delivering.
  To be continued.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.